Rodriguez (Pedro) v. State (Death Penalty-Direct)

 Motion to. relieve counsel
Rodriguez argues that the district court erred in denying his
motion to relieve counsel because counsel failed to negotiate for a better
plea deal than had been offered by the State. He further argues that the
district court's inquiry into his motion was inadequate and improperly
conducted in front of opposing counsel. He also contends that the district
court should not have forced him to waive his attorney-client privilege for
the hearing and then continue to trial with the same counsel when the
motion was denied.
We conclude that the district court did not abuse its discretion
in denying the motion to withdraw or discharge counsel. See Young v.
State, 120 Nev. 963, 968, 102 P.3d 572, 576 (2004) (reviewing the "denial
of a motion for substitution of counsel for abuse of discretion"). Despite
his allegation of a conflict of interest, Rodriguez did not demonstrate that
counsel's loyalty was compromised. Rodriguez and counsel disagreed over
how to best obtain a favorable plea offer from the State. This difference of
opinion did not rise to the level of a "complete collapse of the attorney-
client relationship." Id. at 969, 102 P.3d at 576. Further, as the State
clearly indicated that there was no possibility of a more lenient plea offer,
their disagreement was essentially moot. In addition, the district court's
inquiry was sufficient to address the concerns raised by Rodriguez and
counsel, as the district court addressed those concerns over several
hearings and considered the statements of Rodriguez, counsel, and the
district attorney. Rodriguez's waiver of his attorney-client privilege was
necessary to determine the extent of the alleged conflict. The inquiry was
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not broader than necessary to address the concerns over the plea
negotiations, so it did not hinder Rodriguez's ability to litigate the penalty
hearing. Therefore, the district court adequately inquired into the
grounds for the motion to withdraw, Rodriguez's reason for seeking
withdrawal was not meritorious, and the conflict did not prevent counsel
from presenting an adequate defense or result in an unjust verdict. See id.(noting that this court considers `"(1) the extent of the conflict; (2) the
adequacy of the inquiry; and (3) the timeliness of the motion" when
reviewing a district court decision (quoting United States v. Moore, 159
F.3d 1154, 1158-59 (9th Cir. 1998))).
Juror challenge
Rodriguez argues that the district court erred in denying his
challenge to potential juror McFarlin. We disagree. McFarlin's initial
statements indicated that (1) he believed that the death penalty was
appropriate for more than just murder cases and (2) death was the
appropriate sentence for murder and it was the role of the defense to prove
otherwise. Nevertheless, he acknowledged that he could listen to the
evidence and follow the instructions of the district court and the district
court instructed him to not presume that death is the appropriate penalty.
While McFarlin expressed strong feelings about the use of the death
penalty, the trial court's assessment of the juror's state of mind is entitled
to great deference. Walker v. State, 113 Nev. 853, 865, 944 P.2d 762, 770
(1997) (recognizing that when a "prospective juror's responses are
equivocal, i.e., capable of multiple inferences, or conflicting, the trial
court's determination of that juror's state of mind is binding." (quoting
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People v. Livaditis, 831 P.2d 297, 303 (Cal. 1992))). Therefore, Rodriguez
did not demonstrate that the district court abused its discretion in denying
his challenge for cause. Weber v. State, 121 Nev. 554, 580, 119 P.3d 107,
125 (2005). Moreover, although Rodriguez was compelled to use a
peremptory challenge to exclude McFarlin, we held in Blake v. State that
"the fact that a defendant had to use a peremptory challenge to achieve
that result does not mean that the defendant was denied his right to an
impartial jury," where the jury actually seated was impartial. 121 Nev.
779, 796, 121 P.3d 567, 578 (2005). Rodriguez does not allege that any
juror actually empanelled was unfair or biased, and while he encourages
this court to overrule Blake, he has not proffered a sufficient reason to
depart from this precedent.
Evidence of codefendants' sentences
Rodriguez argues that the district court erred in denying his
motion to admit evidence of the more lenient sentences imposed for his
two codefendants. We discern no abuse of discretion. See Ramet v. State,
125 Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing the admission of
evidence for abuse of discretion). We recognize, as Rodriguez points out,
that some jurisdictions consider a codefendant's sentence relevant to a
jury's sentencing decision. See, e.g., Ex parte Burgess, 811 So. 2d 617, 628
(Ala. 2000); State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989); Beardslee v.
Woodford, 358 F.3d 560, 579-80 (9th Cir. 2004). However, there is no
mandatory authority requiring the admission of such evidence, and we
have reiterated the importance of individualized sentencing that takes
into account a defendant's character, record, and the circumstances of the
offense. Browning v. State, 124 Nev. 517, 526, 188 P.3d 60, 67 (2008);
Harte v. State, 116 Nev. 1054, 1069, 13 P.3d 420, 430 (2000). Moreover,
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Rodriguez and his codefendants were not similarly situated. Allen
pleaded guilty to avoid the death penalty. Servin v. State, 117 Nev. 775,
793, 32 P.3d 1277, 1290 (2001). Servin was sentenced to death, but his
sentence was vacated as excessive based on his youth at the time of the
crime, his expression of remorse, the influence of drugs at the time of the
crime, and his lack of a significant criminal background. Id. at 793-94, 32
P.3d at 1290. Conversely, Rodriguez did not plead guilty; he was the
oldest of the three participants in the crime and, as he had known the
victim prior to the crime, the apparent orchestrator of the crime; and his
criminal history included a violent sexual assault on a 14-year-old victim.
Therefore, the district court did not abuse its discretion in denying the
motion to admit this evidence.
Motion to set aside sentence
Rodriguez contends that the district court erred in denying his
motion to set aside his death sentence because it is excessive considering
that he did not shoot the victim and his codefendants received life
sentences. We disagree. Rodriguez did not assert that there is insufficient
evident to support the jury's decision, NRS 175.381(2) (permitting a
district court to set aside verdict where insufficient evidence supports it),
or that he has an intellectual disability, NRS 175.554(5) (permitting the
district court to entertain a motion to set aside a death sentence based on
intellectual disability). The district court did not otherwise have
discretion to set aside his sentence. See Hardison v. State, 104 Nev. 530,
534-35, 763 P.2d 52, 55 (1988) ("[A]fter a jury has assessed a penalty of
death, the judge has no discretion and must enter judgment according to
the verdict of the jury.").
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Constitutionality of his death sentence
Rodriguez asserts that because the evidence shows that Servin
fired the shots that killed the victim and there have been so few
executions involving defendants who did not perform the actual killing for
which they were convicted, his sentence appears arbitrary and capricious
and therefore unconstitutional. We disagree. The record indicates that
Rodriguez intended that lethal force be employed or participated in the
robbery while exhibiting a reckless indifference to the Fondy's life. See
Guy v. State, 108 Nev. 770, 783-84, 839 P.2d 578, 587 (1992) ("To receive
the death sentence, [a defendant] must have, himself, killed, attempted to
kill, intended that a killing take place, intended that lethal force be
employed or participated in a felony while exhibiting a reckless
indifference to human life." (quoting Doleman v. State, 107 Nev. 409, 418,
812 P.2d 1287, 1292-93 (1991))); accord Tison v. Arizona, 481 U.S. 137,
158 (1987) (holding that "major participant in the felony committed,
combined with reckless indifference to human life" is sufficient to satisfy
Eighth Amendment requirements for imposing death penalty). Rodriguez
knew Fondy and enough information about her financial condition to
believe that her safe contained a considerable sum of cash. He was
undoubtedly aware that she was paralyzed and ambulated with the use of
a wheelchair. He and two other assailants entered Fondy's home armed
with two firearms. Considering Fondy's inability to resist the
overwhelming force brought to bear in this robbery, it is evident that
Rodriguez and his confederates intended to employ lethal force or effect
the felony with a reckless indifference to her life. Moreover, Rodriguez
and his codefendants' statements after the crime indicate that they
intended a killing take place. In bragging about the crime later that
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night, Rodriguez stated, "[w]e did it, fool." Therefore, the record is
sufficient to demonstrate that Rodriguez had the necessary culpability for
a constitutionally imposed death sentence •2
Mandatory review
NRS 177.055(2) requires that this court review every death
sentence and consider whether (1) sufficient evidence supports the
aggravating circumstances found, (2) the verdict was rendered under the
influence of passion, prejudice or any arbitrary factor, and (3) the death
sentence is excessive. First, sufficient evidence supported the three
aggravating circumstances found—the murder was committed to avoid
lawful arrest, the murder involved torture and/or mutilation, and
Rodriguez had a prior conviction for a felony involving violence. Second,
nothing in the record indicates that the jury reached its verdict under the
influence of passion, prejudice, or any arbitrary factor. And third,
considering Rodriguez's role in orchestrating the crime, during which
considerable violence was visited on a vulnerable victim, Rodriguez's prior
sexual assault conviction, and the evidence in mitigation, we conclude that
Rodriguez's sentence was not excessive.
2The jury found that the murder was committed to avoid or prevent
a lawful arrest, the murder involved torture or mutilation, and that
Rodriguez had been previously convicted of a felony crime involving the
use or threat of violence. The jury had been instructed on the statutory
mitigating circumstances pursuant to NRS 200.035. The record does not
indicate that the jury found any mitigating circumstances. The jury
further concluded that any mitigating circumstance or circumstances were
not sufficient to outweigh the aggravating circumstances found and
sentenced Rodriguez to death.
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Having considered Rodriguez's contentions and concluded that
they lack merit, we
ORDER the judgment of convi tion AFFIRMED.
, C.J.
Hardesty
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Parraguirre
J.
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Douglas
9 J.
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cc: Hon. Brent T. Adams, District Judge
David Kalo Neidert
Attorney General/Carson City
Washoe County District Attorney
Washoe District Court Clerk
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PICKERING, J., with whom CHERRY and SAITTA, JJ., agree, dissenting:
We respectfully dissent.
In a death penalty case, it is "desirable for the jury to have as
much information before it as possible when it makes the sentencing
decision." Gregg v. Georgia, 428 U.S. 153, 204 (1976). At his penalty
hearing, Rodriguez sought to introduce evidence of the life sentences that
his two accomplices, Robert Servin and Brian Allen, received. Initially,
the district judge deemed this evidence relevant and admissible, then
reversed himself and excluded it. We recognize the split of authority that
exists nationally on the admissibility of accomplice sentences in a death
penalty hearing, see PosteIle v. State, 267 P.3d 114, 140-41 (Okla. Crim.
App. 2011) (collecting cases), and that ordinarily, the admission or
exclusion of evidence is entrusted to the sound discretion of the district
court, which an appellate court will not reverse absent abuse. But unless
we are prepared to hold such evidence per se inadmissible—and this is not
the law in Nevada, see Flanagan v. State, 107 Nev. 243, 247-48, 810 P.2d
759, 762 (1991), vacated by Moore v. Nevada, 503 U.S. 930 (1992)—
Rodriguez's sentencing jury should have been told that the actual shooter,
Servin, received a life sentence, as did Allen, his accomplice. We recognize
that Rodriguez was 19 and had a prior violent felony in his background,
whereas Servin and Allen were 16 and 17, respectively, without significant
criminal histories. Nonetheless, the life sentences Servin and Allen
received were relevant to the jury's determination of whether death was
an appropriate sentence for Rodriguez. Since evidence of Servin's and
Allen's participation was already before them, the evidence did not pose a
significant danger of misleading the jury or delaying the proceeding. And,
given that Rodriguez was not the shooter and may have been convicted on
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a felony murder theory, 1 we cannot say that the district court's failure to
admit this evidence was harmless.
The jury must "be able to consider and give effect to all
relevant mitigating evidence." Boyde v. California, 494 U.S. 370, 377
(1990). Mitigation evidence includes "any aspect of a defendant's
character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death." Lockett v.
Ohio, 438 U.S. 586, 604 (1978). The majority of this court has joined
jurisdictions that have concluded that an accomplice's sentence does not
relate to a defendant's character or record nor is it a circumstance of the
offense. See Brogdon v. Blackburn, 790 F.2d 1164, 1169 (5th Cir. 1986)
(concluding that codefendant's sentence not relevant to defendant's
character or •record); People v. Moore, 253 P.3d 1153, 1181 (Cal. 2011)
(similar); Crowder v. State, 491 S.E.2d 323, 325 (Ga. 1997) (similar); State
v. Roache, 595 S.E.2d 381, 426 (N.C. 2004) (similar); State v. Charping,
508 S.E.2d 851, 855 (S.C. 1998) (similar); Saldano v. State, 232 S.W.3d 77,
100 (Tex. Crim. App. 2007) (similar). But reasonable minds can disagree,
and several jurisdictions consider disparity in codefendants' sentences to
be mitigating evidence. See Ex parte Burgess, 811 So. 2d 617, 628 (Ma.
2000) (considering state statute that requires proportionate sentencing in
'Juries often reject the death penalty in cases where the defendant
"did not commit the homicide" or "was not present when the killing took
place." Enmund v. Florida, 458 U.S. 782, 795 (1982). In fact, as the Court
observed in Enmund, "only a small minority of jurisdictions-eight-allow
the death penalty to be imposed solely because the defendant somehow
participated in a robbery in the course of which a murder was committed,"
and less than 2% of those executed between 1954 and 1982 were
nontriggermen. Id. at 792.
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concluding that lenient treatment of accomplices was mitigating factor);
State v. Marlow, 786 P.2d 395, 402 (Ariz. 1989) (similar); State v.
Ferguson, 642 A.2d 1267, 1269 (Del. Super. Ct. 1992) (similar); see also 18
U.S.C. § 3592(a)(4) (2006) ("In determining whether a sentence of death is
to be imposed on a defendant, the finder of fact shall consider any
mitigating factor, including the following: (4) Equally culpable
defendants.—Another defendant or defendants, equally culpable in the
crime, will not be punished by death.").
Just as the State may present evidence about matters
unrelated to aggravating circumstances, a defendant is not limited to
presenting only mitigating evidence. A capital sentencing hearing has two
distinct phases: an "eligibility phase," during which the jury narrows
those defendants eligible for the death penalty, and a "selection phase,"
during which the jury decides "whether to impose a death sentence on an
eligible defendant." Summers v. State, 122 Nev. 1326, 1336, 148 P.3d 778,
785 (2006) (Rose, J., concurring in part and dissenting in part); see also
Kansas v. Marsh, 548 U.S. 163, 173-74 (2006) (noting that capital
sentencing procedures "must: (1) rationally narrow the class of death-
eligible defendants; and (2) permit a jury to render a reasoned,
individualized sentencing determination based on a death-eligible
defendant's record, personal characteristics, and the circumstances of [the]
crime"). The jury's discretionS must be channeled when determining
whether aggravating circumstances exist and whether any circumstances
that are found are outweighed by any mitigating circumstances found, but
should be broadened to allow an individualized determination of whether
death is an appropriate sentence. Summers, 122 Nev. at 1337, 148 P.3d
785. As part of this individual determination, "evidence may be
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presented .. . on any other matter which the court deems relevant to the
sentence, whether or not the evidence is ordinarily admissible." NRS
175.552(3) (emphasis added). As evidence relevant to mitigation has been
"broadly defined," we have noted that "this provision is of little practical
benefit to the defendant." Hollaway v. State, 116 Nev. 732, 746, 6 P.3d
987, 997 (2000). But it is not without any benefit.
In our view, the evidence concerning Servin's and Allen's
sentences is relevant to the selection phase of the penalty hearing. The
death penalty is reserved for those defendants who are "the worst of the
worst." Roper v. Simmons, 543 U.S. 551, 568 (2005) ("Capital punishment
must be limited to those offenders who commit a narrow category of the
most serious crimes and whose extreme culpability makes them the most
deserving of execution." (internal quotation marks)). Capital juries are a
critical "link between contemporary community values and the penal
system." Gregg, 428 U.S. at 181 (quoting Witherspoon v. Illinois, 391 U.S.
510, 519 n.15 (1968)). They use the contemporary values to assess a
defendant's moral culpability and impose an appropriate punishment. See
People v. Karis 758 P.2d 1189, 1204 (Cal. 1988) ("In weighing the
appropriate penalty, deciding between death and life imprisonment
without possibility of parole, the jury performs a normative function,
applying the values of the community to the decision after considering the
circumstances of the offense and the character and record of the
defendant"); see also Watson v. State, 130 Nev., Adv. Op. 76, 335 P.3d 157,
172-74 (2014) (noting several factors, including moral culpability, as
relevant to a capital sentencing determination). This selection process is
important to maintaining a system where there are meaningful
distinctions between those cases where the death penalty is imposed and
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the cases where it is not imposed. See Callins v. Collins, 510 U.S. 1141,
1147 (1994) (Blackmun, J., dissenting) (noting that penalty scheme
requires a "meaningful basis for distinguishing the few cases in which
[the death penalty] is imposed from the many cases in which it is not"
(alteration in original) (quoting Furman v. Georgia, 408 U.S. 238, 313
(1972) (White, J., concurring))). Accordingly, we owe jurors a duty to
present all the information necessary to properly effect contemporary
community values in the case at hand. See also ABA Principles for Juries
and Jury Trials, Principle 13 (2005) ("The court and parties should
vigorously promote juror understanding of the facts and the law."). And
where multiple defendants are responsible for the criminal conduct which
resulted in a death, consideration of the moral culpability of those other
defendants and the penalties levied against them, to the extent that
information is available, can help the jury to make a reasoned and moral
judgment about whether death is appropriate for any of the perpetrators.
See Simmons v. South Carolina, 512 U.S. 154, 172 (1994) ("The Eighth
Amendment entitles a defendant to a jury capable of a reasoned moral
judgment about whether death, rather than some lesser sentence, ought to
be imposed.") (Souter, J., concurring); United States v. Gabrion, 719 F.3d
511, 524 (6th Cir. 2013) (Mitigation evidence relating to "whether
la]nother defendant or defendants, equally culpable in the crime, will not
be punished by death' ... does not measure the defendant's culpability
itself, but instead considers—as a moral data point—whether that same
level of culpability, for another participant in the same criminal event,
was thought to warrant a sentence of death. Hence this factor likewise
addresses whether the defendant's culpability warrants death."
(alteration in original) (quoting 18 U.S.C. § 3592(a)(4) (2012))). This court
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has even considered evidence of a codefendant's sentence to be proper and
helpful" for the jury's consideration during a capital penalty hearing when
that evidence was offered by the State. Flanagan, 107 Nev. at 248, 810
P.2d at 762.
We further conclude that the evidence did not pose a danger of
misleading the jury. See NRS 48.035(1) ("Although relevant, evidence is
not admissible if its probative value is substantially outweighed by the
danger of unfair prejudice, of confusion of the issues or of misleading the
jury."). All the perpetrators were teenagers. They had not developed such
lengthy social and criminal histories that explaining the differences
between them would have taken the presentation of evidence in this case
too far afield. In fact, during oral argument the State could not provide a
single reason why admission of this evidence would cause undue delay or
confusion, and the majority was able to condense the key reasons for
Allen's and Servin's sentences to less than half of a paragraph: "Allen
pleaded guilty to avoid the death penalty. Servin was sentenced to death,
but his sentence was vacated as excessive based on his youth at the time
of the crime, his expression of remorse, the influence of drugs at the time
of the crime, and his lack of significant criminal background." (citations
omitted). But even if the majority were correct about delays, "death is
different," Gregg, 428 U.S. at 188, and the criminal justice system owes
the utmost care to capital defendants and the jurors entrusted with the
unenviable task of sentencing them. Zant v. Stephens, 462 U.S. 862, 884-
85 (1983) ("[B]ecause there is a qualitative difference between death and
any other permissible form of punishment, 'there is a corresponding
difference in the need for reliability in the determination that death is the
appropriate punishment in a specific case." (quoting Woodson v. North
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Carolina, 428 U.S. 280, 305 (1976))). Therefore, we conclude that the
district court abused its discretion in denying Rodriguez's motion to admit
evidence concerning his accomplices' sentences. See Barnet v. State, 125
Nev. 195, 198, 209 P.3d 268, 269 (2009) (reviewing the admission of
evidence for abuse of discretion).
We further conclude that this error was not harmless, see
Newman v. State, 129 Nev., Adv. Op. 24, 298 P.3d 1171, 1181 (2013) ("A
nonconstitutional error, such as the erroneous admission of evidence at
issue here, is deemed harmless unless it had a substantial and injurious
effect or influence in determining the jury's verdict." (internal quotation
marks omitted)), and cannot withstand our mandatory review under NRS
177.055. Rodriguez, Servin, and Allen robbed the victim. Servin and
Allen brought weapons and Servin stated that he was prepared to shoot
the victim if need be. Rodriguez was unarmed. After robbing the victim,
Servin shot her to death while Rodriguez and Allen were outside the
residence. Rodriguez was charged under both the premeditated and
felony-murder theories of liability. The verdicts do not indicate under
which theory Rodriguez was convicted, but it appears reasonably certain
that the jury held Rodriguez "strictly accountable for the consequences of
perpetrating a felony," under the felony-murder theory. Sanchez-
Dominguez v. State, 130 Nev., Adv. Op. 10, 318 P.3d 1068, 1075 (2014); see
State v. Contreras, 118 Nev. 332, 334, 46 P.3d 661, 662 (2002) ("The
felonious intent involved in the underlying felony is deemed, by law, to
supply the malicious intent necessary to characterize the killing as a
murder, and .. . no proof of the traditional factors of willfulness,
premeditation, or deliberation is required for a first-degree murder
conviction."). In our view, it is reasonably unlikely that the jury would
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have sentenced Rodriguez—a nonshooter—to death if it had the benefit of
the knowledge that the other perpetrators, who were equally or more
morally culpable for the murder, received life sentences. Consequently,
we would reverse and remand for a new penalty hearing.
J.
Saitta
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